Textualism as an Equality Practice?

Abstract

Does textualism promote or protect equality? Several prominent textualist scholars and jurists have raised the possibility that textualism may serve equality values. And yet the role of textualism in protecting equality remains largely unexplored. This Article takes seriously the claim that textualism may promote equality: either as an absolute matter, or in comparison to other statutory interpretation methods. It asks, can textualism be conceptualized as an equality practice, i.e., an interpretive practice that protects or promotes equality?

This Article answers this question with a qualified “yes.” Textualism can promote equality before the law, a thin form of equality often associated with the rule of law. Moreover, this thin form of equality can help to promote thicker forms of equality, by preventing the gerrymandering of disfavored groups out of rights protections, and of favored groups out of burdensome laws. This thin form of legal equality can also further substantive equality by preventing the judicial hobbling of legislative gains secured especially by or for historically marginalized groups (such as civil rights laws, social welfare law, and laws protecting Native Nations’ sovereignty).

But this Article also cautions that the equality-promoting potential of textualism is qualified. Only certain forms of textualism—what other scholars have referred to as “formalistic” textualism—are likely to be sufficiently constraining to create meaningful protections for equality. Moreover, even applying formalistic textualism, there will surely be circumstances where textualism confronts true indeterminacy or even cuts against substantively equality-promoting results. Finally, legal realism poses a genuine challenge to claims that any interpretive theory can meaningfully constrain judicial preferences, and thus to any theory’s claims of equality-promoting potential.

Nonetheless, this Article suggests that it is worth identifying equality as a nascent value of textualism, and theorizing the implications of textualism’s equality-promoting potential. For those who self-identify as textualists—a group which includes a majority of the current Justices on the Supreme Court—understanding equality as one of the values that textualism protects has important methodological implications. And even for those who oppose textualism, consideration of the equality risks of non-textualist methodologies may help avoid the equality harms to which non-formalist methodologies may be especially susceptible.

Keywords: Textualism, Equality, Statutory Interpretation